April 5, 2006

Last year, Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, introduced a bill to require the Supreme Court to permit its arguments to be televised unless a majority of the justices voted to bar television on a case-by-case basis. Other proposals include mandating television access, or simply permitting and encouraging it.

Asked for his views on the subject, Justice Kennedy said it raised a "sensitive point" about the constitutional separation of powers.

"It's not for the court to tell Congress how to conduct its proceedings," and the reverse was also true, he said. He added, "We feel very strongly that we have intimate knowledge of the dynamics and the mood of the court, and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches."

So, it raises the question of separation of powers, but would requiring television cameras in the Supreme Court violate separation of powers? When I first read about Specter's bill, I tossed off a post saying "I should think there is a decent argument that this would be unconstitutional, violating separation of powers." Then, a reporter called me and asked me to explain why, and I had to admit I couldn't see why the argument was any good.

Kennedy says "It's not for the court to tell Congress how to conduct its proceedings," but the U.S. Code is full of statutes telling courts how to conduct their proceedings. Reexamining the question after the reporter's call, I decided to support Specter's bill:

I think the public would be well served by the ability to see and hear [the oral] arguments, and much as I would prefer the Court to adopt cameras for itself and think it's rather intrusive for Congress to act, I think Congress should do it. I'll explain why....

The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices... are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanant but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

The fervent opposition of the Justices makes it hard to stick to my tough position, but it also enhances my suspicions. What are they trying so hard to protect? From the first-linked article:

[Justices Kennedy and Thomas], who have been the court's representatives to Congress on budget matters for several years, appeared to relish the chance to elaborate on the television question. Justice Kennedy described the absence of cameras as a positive.

"We teach that our branch has a different dynamic," he said. "We teach that we are judged by what we write."

One member of the subcommittee, Representative John W. Olver, Democrat of Massachusetts, appeared taken aback by Justice Kennedy's fervor. "You've made it clear that you are part of the cerebral branch," Mr. Olver said.

What's this "we teach" business? I'm a law professor, teaching about the Court all the time, and I certainly don't teach that the writing should be taken at face value. We try to figure out what's behind the writing. A judge may want you to accept his writing at face value, but we'd be fools to do that. And when it comes to judging the competence of a person holding life tenure to a position of great power, we should be critical and not deferential.

Steny Hoyer made a good point about this during the hearing, which is that it may be an open question as to whether Congress has the raw power to demand cameras in the Courtroom, but that it is a power that is best observed by its disuse. This prompted Kennedy to observe that whether there is the power to demand cameras, it is incompatible with the comity that exists between co-ordinate branches of government. Doctrines like the presumption of constitutionality are premised on the idea that there should be a degree of comity and respect between the branches, and for Congress to demand cameras is not a very respectful action.

As I see it, this is essentially a fit of pique on the part of a few Senators who are unhappy about the Court's striking down of certain statutes. I think that Specter's remarks during the confirmation hearings about the Court "ignoring" factual findings were revealing, and it may well be the case that Specter's argument is that the Court has abandoned the comity between the branches, so Congress should push back. As with all of the arguments in favor of cameras in the court - and Specter's bill lists every single good reason to put cameras in the court - it doesn't amount to much.

In any event, it seems to me that Kennedy's comments put the final nail in the coffin. Of all the Justices, I would have thought that Kennedy was the one who was most likely to say yes to cameras, but he not only closed the door fairly firmly to cameras, period, but absolutely slammed the door shut on Congress imposing cameras. By my count, Scalia, Thomas, Kennedy and Souter say no, Breyer's concerns are a practical no, and both Alito and our Fearless Leader strongly hinted that they would say no during their confirmation hearings.

Indeed, it seems possible that right now, there are enough Justices strongly opposed to the idea to deny the court a quorum by refusing to participate in televised oral arguments:

"Six Members of the Court constitute a quorum . . . In the absence of a quorum on any day appointed for holding a session of the Court, the Justices attending — or if no Justice is present, the Clerk or a Deputy Clerk—may announce that the Court will not meet until there is a quorum." (Supreme Court Rule 4(2)). It would be a drastic step, but I think Souter and Scalia at least are intractably hostile to the idea, and now Thomas and Kennedy have all-but signed on to that dissent.

Lastly, I would briefly re-iterate that (for once) I entirely agree with Justice Souter's opinion: no cameras in the court. It's not that I wouldn't like to watch oral arguments - I would, and I know a lot of other legal types would too. And for that matter, it would probably do my cause some good, because as I think our Hostess has pointed out before, the Justices who are most entertaining - that is, will make best television - are Justices friendly to my agenda. No-one has ever sat on the edge of their seat during a rambling Breyer hypothetical, and while I think Souter asks some very good questions, they aren't the sort of sexy, attention-grabbing questions that a lay audience is going to stick around for. But in any event, the point is, just because a few SCOTUS geeks - me included - would have something new to distract them from work isn't a good argument for cameras - it's barely an argument at all. All in all, I think there are too many potential harms outweighed by too few potentential benefits.

The grandstanding thing is of course an issue. The change in the nature of oral argument, too; the maxim "if it ain't broke don't try to fix it" should apply. The concern Our Hero has raised -- misrepresentation of what happens at the court which will inevitably follow people watching only brief snippets and soundbites rather than the full argument; as Justice Thomas pointed out in the hearing, nobody in PST is going to get out of bed early to watch an ERISA pre-emption case -- is a valid one. These concerns have been more fully covered in other places. But my more abstract concern is that I dispute the notion that the Court performs a function which requires cameras. Personally, for many different reasons, I think C-SPAN is a failed experiment, and I would not only keep it out of the Court but throw it out of Congress, too. But one can certainly understand why it might be a good idea to put cameras into the legislative branch of government. The impulse is understandable, because the people have an obvious interest in knowing what laws their elected representatives are promulgating in their name, and how they conduct themselves. But why would that apply to a court of law? As I see it, the presence of C-SPAN in the court will further encourage the country - and certain impressionable Justices - to think of the Court as being another branch of government not essentially different to Congress. If the court is performing its function the way it should, there should be no need for cameras.

Of course, I may just be a stubborn Burkeian who thinks that momentous change to tradition should be rejected in the absence of a compelling argument for it rather than embraced in the absence of a compelling argument against it. ;)

1) There is the old adage-- if it ain't broke, don't fix it. Is the Court broken?

If the answer is determined to be "no," then the expectation of benefit must be great and the risk of detriment extremely low before I would say making a change is a good idea.

If the answer is determined to be "yes," then it is time for question two.

2) Does the proposed change primarily address the broken state of affairs?

If the proposed change is tangental to the reason things are not functioning properly, then we again are where the expectation of benefit must be great and the risk of detriment extremely low before I would say making a change is a good idea.

If the proposed change, however, would address directly and effectively the problems facing the Court, then it is a good idea.

So, with this path forward in mind, is the Court broken? I believe that the strongest case that can be made in this regard would be one that says that the Court has gotten too political. Further, I have yet to see a case where the addition of cameras has made anything less political.

Ergo, while I would like this proposed change from a perspective of satisfying my curiousity, I say "nay."

Yes I read your post Ann. Any regular reader of this blog would be foolish to post without reading your post twice and all ancillary links associated with it. If the comments allowed easy-format footnoting, that would be good to.

Why doesn't the audio recording suffice to demonstrate the health and with-itness of the justices during oral arguments? You can hear the quality of their voice (or it's total absence, vis-a-vis Thomas). You can hear their cadence and timing.

As for slumping in the chair - why not have a few still photographs released? That should suffice to expose the hangers-on.

At least the hanger-on presumably had a few good years. Once cameras are introduced, a slew of strong candidates will be eliminated from ever serving because they "won't play well on TV."

You mean that "cameras would expose the Justices who cling to their seats despite declining ability"? That's certainly specific, but I don't think it's necessarily a good one. How would cameras expose a Justice of declining ability in a way that audio recordings do not? Would the first sign of failing mental accuity really be that the Justice drools, or might there be other signs - like the questions they ask - which audio recordings would pick up on?

The idea, by the way, that the court is protecting someone is almost too absurd to entertain. Imagine Justice Ginsburg was, in fact, going the way of Justice Marshall: failing health, opinions entirely written by clerks, but the other Justices, of all stripes, didn't want to say anything to the outside world. Even if the Justices are immune to partisanship, I honestly find it hard to believe that in today's atmosphere, a law clerk for one of the conservative Justices wouldn't blow the whistle. I just don't see the argument that they must be hiding something because they don't want cameras. Surely, you must be aware that if you give a lecture with three cameras and a bunch of TV lights in the back of the lecture theater, that will change - even subtly - how you deliver the lecture. It will change oral argument, just as C-SPAN has changed Congress. There would have to be a monumentally compelling public interest in televising the court to justify the damage it would do to the nature of oral arguments.

"I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court."

I increasingly think that a better check would be that the time has come for life tenture to become a thing of the past. The age at which a person is deemed mature enough to become a judge has not substantially altered in two hundred years, but the subsequent increase in lifespans has substantially changed the meaning of life tenure. Given the problem of aging justices, given the whole messianic hullaballoo that inheres in confirming someone to a court these days, I think it's probably worth seriously examining the possibility of appointing Judges for finite, non-renewable terms. It should be a long term - if it's twenty years, it's twenty years; if it's fourteen years, that's fine too - but it should be finite. I haven't really made my mind up on this, but I think it's something to consider, and I'd certainly take that over the television plan.

You wouldn't vote for a political candidate who avoided the camera and insisted on audio only.

I think the vigor and sharpness of the justices is an important matter of public concern that we should be allowed to see.

The arguments are public events, but most members of the public are in no position to go sit in on them. On important cases, you can't get in even if you do travel and wait in line. The public deserves access by TV.

Frankly, I think the arguments are very impressive and would do a lot to convince the public that the Court's role is beneficial. TV coverage would enhance respect for the law. I'm tired of the boilerplate assertions about grandstanding. It would be for the good to get the cameras in there, and the justices will resist this forever. They are extremely powerful people, who have shown their tenacity, holding their positions even they are in their 70s and 80s and beyond, and they owe us some public demonstration of their abilities. We just saw Roberts and Alito spend a week showing us that they deserve the trust we put in them, yet we are also bound to decisions made by persons who went through that public exercise decades ago. Their written work is assisted to some unknown degree by faceless clerks. Asking for more accountability is perfectly justified.

"You wouldn't vote for a political candidate who avoided the camera and insisted on audio only."I would vote in a heartbeat for a political candidate who I knew only through what they'd written and what had been written about them, so I would certainly vote for a candidate who insisted on audio only. At the risk of sounding like a Souter-style hermit, Americans managed perfectly well to get through 23 Presidential elections before 1877, and got another four in before 1894, so the idea that respectively hearing and seeing a candidate is a prerequisite for voting seems one of the more bizarre conceits of the modern world. One of the best features of the internet is precisely that there is once again - for the first time since the dawn of the mass media age - a premium on the quality of one's ability with the written word. I have no idea what Lyle Dennison looks like, but I read his column religiously, and I don't think my enjoyment of Eugene Volokh's blog is diminished by the fact that it does not include a podcast or a photo of the bloggers. What makes Althouse Althouse is the writing, not that there happens to be a photograph of the Hostess in the top right hand corner.

"I think the vigor and sharpness of the justices is an important matter of public concern that we should be allowed to see. "I think that the ability of the public to discern the vigor and sharpness of the Justices is catetered to fully by the audio recordings, and would be enhanced almost nil by television cameras. I would prefer that audio recordings (and indeed transcripts) not be released until after the opinion was handed down, but if it were the price of keeping cameras out, I would tolerate quick-release or even live audio.

The argument that the public "deserves" access may to some extent be sustainable where a legislature is concerned, although I think the experience of C-SPAN has shown that it has a downside. But what is the argument that the public deserves access to the Supreme Court (or, for that matter, any other court)? "Has an interest in," I'll buy - but "deserves"? This goes back to my abstract concern raised ante. The public's interest in access to the legislature is that the public has an obvious concern with what the law should be, a concern which manifests itself as the power to remove representatives who approve bad law. But the court, as I see it, is there to say what the law is, not what it should be. That task is best facilitated, I think, in careful analysis and promulgation of written opinions. Oral arguments are impressive, but they are not legislators debating what the law should be, the latter having obvious public interest.

Lastly, I think that the single most predictable result of cameras in the court will be an increase in the sort of armchair quarterbacking by MSM pundits. This will naturally be spun; CNN will feature a snippet of Justice Thomas saying nothing while Justice Breyer posits a hypothetical and say it's obvious that Thomas isn't paying attention to Breyer's important point, while Fox will run our Fearless Leader quietly lacerating counsel; on both channels, an "expert" pundit will say how the case will turn out, which is to say, they will signal to their audience that if it turns out the other way, the audience should be outraged (and stay tuned, because if you aren't outraged, we're here to help). It's hard to see how any of this will help enhance public regard for the court.

I have yet to see an argument advanced - by anyone - that even begins to convince me that cameras are a good thing, even if we assume as moot the "boilerplate assertions about grandstanding"; I don't think that it is either boilerplate or moot, but it is certainly the least of the arguments against cameras, and I will happily disregard it arguendo. I don't think that the arguments against cameras are easily dismissed, and I don't think that the arguments for cameras amount to much, paticularly when offered by people who have an obvious interest in watching it. When Brian Lamb says the court should let cameras in, one has to wonder about his motives. If the for/against score is level, cameras should stay out. It would take a monumentally strong showing on the "for" side (and an implausibly weak showing on the "against" side) to pursuade me otherwise.

"You wouldn't vote for a political candidate who avoided the camera and insisted on audio only."

That's precisely the issue, these aren't political candidates. And like the analogies to Congress some senators made, it's off base. The whole point of this branch is to be as apolitical as possible. Being on TV will undue that, undoubtably.

"I think the vigor and sharpness of the justices is an important matter of public concern that we should be allowed to see." So why not slip down the slope and let's have cameras and audio in the room when they deliberate?

IMHO, it's more about the impact on the attorneys, which was a focal point of Kennedy's opposition to cameras in the caught, but which has been absent in this discussion. There is no doubt it would change the whole thing and lawyers would be playing to the camera. The media would run with it, re-shape the cases/issues, and we'd have mayhem outside the court thereby exerting political pressure on a brach we hope is as free of that as possible. I'm not being naive about political influences on the court; however, I am advocating for minimization of it, and this would only open up the flood gates.

Sorry, but I don't want the Supreme Court oral argument to turn into the OJ Simpson case, Michael Jackson, or the Scott Petterson. This would not add value to the public discussion nor the profession, it would dummy it down and hollywoodize it just like everything else in America.

Want to hear the vigor, want to hear the sharpness? Listen to the tapes.

"Grandstanding by lawyers"- Lawyers in oral arguments, particularly the good ones, argue to the judges, not the gallery. I can't see a camera changing that. Further, if an appellate panel, let alone the Supreme Court, doesn't have a member capable of cutting a grandstanding lawyer down to size, we haven't been getting the right folks on the bench. I've worked for a trial court for over ten years and am strongly opposed to cameras in the courtroom at that level, I think that they influence the jury and the judges. On the appellate level, I don't have any problem with them. Prof. Althouse points out one possible benefit. More important, to my mind, is the fact that trials are proceedings open to the public, briefs and opinions are public records, mostly, and the proceedings ought to be available to as many people who wish to observe them as possible. At the trial level, that interest is outweighed by the pressure of public perception on juries and judges. At the appellate level, there is no good argument against it. So what if soundbites are broadcast? Last I saw, the tv news features a sketch and some news anchor quoting a question and response. Seeing the real thing would be different how? On a tangential note, Prof. Althouse writes: "A judge may want you to accept his writing at face value, but we'd be fools to do that." Why is that? In my experience, just as lawyers advocate positions based upon client's interests, judges frequently write opinions according to laws which they do not personally agree with. If Judge X believes that the death penalty should be regularly imposed for murder, yet writes an opinion excluding that penalty in a given case based upon the facts and the applicable law, how does his personal belief come into play? Judges must necessarily be evaluated based solely upon what they write. Lord knows there are usually enough inconsistencies found therein to provide discussion.

"if an appellate panel, let alone the Supreme Court, doesn't have a member capable of cutting a grandstanding lawyer down to size, we haven't been getting the right folks on the bench"

But we'd be changing the rules of the game mid-way through. Cutting a grandstanding lawyer might now be a requisite skill, but nothing something previously considered when nominating someone.

Not really changing the rules. Judges come from lawyers. Good lawyers are articulate and able to think on their feet. If good laywers become judges, then.... Further, I doubt that skill in controlling oral argument would ever become a critical skill for a nominee, as oral argument isn't where the bulk of the work of the court goes on. That's why oral argument isn't conducted in every single case. Finally, it doesn't takethat much skill, necessarily. Judges speak from a position of power. They can get snarky with lawyers, the reverse is not true. Based on my observations, it is nearly invariable that when a judge makes a half-funny joke, everyone laughs. Lawyers making jokes generally, if not always, get told to cut it out.

mdmnm said..."...as oral argument isn't where the bulk of the work of the court goes on."

A statement which further undercuts the case for televising hearings; if oral argument is of relatively little importance in deciding cases, and if the argument is that the public has a right to know how the court is deciding cases, why stop at oral arguments? Why not have cameras in the conference room? Why not have a guy with a steadicam follow each Justice around all day - CSPAN 4 5, 6, 7, 8, 9, 10, 11 and 12? And why stop with the judicial branch - why not in cabinet meetings? In the oval office? Where does this demand for transparency end, and what is its inherent limiting principle, if anything?

I really am curious to know if anyone who supports cameras can offer a coherent rationale which explains why cameras are appropriate at Supreme Court oral argument but which has structural reasons why its logic would not put cameras in the corner of every room in the Federal government.

wannablawyer said..."IMHO, it's more about the impact on the attorneys, which was a focal point of Kennedy's opposition to cameras in the caught, but which has been absent in this discussion. There is no doubt it would change the whole thing and lawyers would be playing to the camera."

While I'm less dismissive of this argument than is Ann, I really think it's the weakest argument against cameras. A very few minor exceptions aside, I really have a hard time believing that an attorney could expect to be taken seriously if he did so, and I really have a hard time believing that an attorney could seriously believe he was acting in the best interests of the client in the instant case. So I really think that the "grandstanding

On the other hand, I would invite everyone to go and listen to the Elk Grove v. Asshole oral argument, here. At at 48:27-49:04, you will find something that should worry you about live audio or live cameras. It is an invitation to see it not as a legal proceding but as an opportunity to further one's political cause. Do you really want oral argument disrupted by heckling from the gallery? Because I promise you, that is what will happen; sooner or later, a bunch of spotty LaRouche Youth muppets will figure it's some free publicity to get dragged out of the courtroom on live television shouting about how we now see the violence inherent in the system and so on. So you'll appreciate that I would rather not have live anything, let alone television, in the courtroom; there should at very least be adequate delay that such interruptions as happened in Newdow or might happen in future can be redacted from broadcast.

A statement which further undercuts the case for televising hearings; if oral argument is of relatively little importance in deciding cases, and if the argument is that the public has a right to know how the court is deciding cases, why stop at oral arguments? Why not have cameras in the conference room?

Heck while we’re at it, let’s put video cameras in the court room during jury selection and in the jury room during deliberations so that we all see how they came to their decision.

I think any seperation of powers issue has long been resolved. I don't see how the Supreme Court could say it vilated the seperation of powers after Congress has legislated transparancy in the Executive Branch with the Freedom of Information Act. It seems like they would be comparable situations to me.

"I would vote in a heartbeat for a political candidate who I knew only through what they'd written and what had been written about them"

Not only would I do this, it's my regular practice. While, technically speaking, we do have a television in our house, it's only hooked up to a VCR and DVD player. I literally never watch tv news, cable talking-head shows, and the like. While I have met (and even personally know) some of our local politicians, as well as my Congressman and his challengers, most of the people I've voted for--or against--at the state and national level are people whom I only know through print. In this day of the web and blogosphere, I'd be surprised if this weren't an increasing trend.

Ann,

Most of the benefit of increased-respect-for-the-proceedings could be achieved even if there were a substantial time lag imposed between the filming and the release, could it not? The less immediacy, the better, is my initial reaction. Something like 24-36 months--perhaps at the end of each year's court calendar, they would release the 2nd previous year's video.

The cure would create a worse disease: dancing Itos in the Supreme Court. Tying two of your interests (and mine) together: The Idol television audience this week voted off one of the best talents this season due to one only adequate performance. This I see as illustrative of a truism: the people in general are shallow, incapable or adverse to depth of thought, and look at the incident of the moment rather than looking at overall performance. More specifically as it relates to the Supreme Court and it's function, they are ignorant of the law, incapable of looking at a jurist's overall understanding of the law and instead would look at the performance of the moment to form their judgments. Further, they would decide how they wanted the court to decide based on their own political and emotional opinions rather than the legal arguments. (Who was it said the average American's opinion of what is constitutional is what he agrees with and unconstitutional is what he disagrees with? Frankfurter perhaps.) Televising oral arguments would not educate the American people on how the Court works or what the issues are, and instead would provide video grist for the same spin doctors who are already attacking the Court's independence and integrity. I want Justices who are asking questions that are of genuine concern to them relating to the case before them, not questions calculated to win them sound bite time on that evening's news. The other two branches have the politicians and performers, we need to keep them out of the third branch. Whenever in the past a Justice needed to retire, the court's knowledgable watchers spread the word, pressure came to bear, and the other justices acted to ease the justice out.

Not only would I do this, it's my regular practice. While, technically speaking, we do have a television in our house, it's only hooked up to a VCR and DVD player. I literally never watch tv news, cable talking-head shows, and the like. While I have met (and even personally know) some of our local politicians, as well as my Congressman and his challengers, most of the people I've voted for--or against--at the state and national level are people whom I only know through print. In this day of the web and blogosphere, I'd be surprised if this weren't an increasing trend.

I pretty much do the same thing. I consider myself a fairly informed person but don’t watch television news or read newspapers or magazines anymore. I’ve found that I can get far more content through the Internet through either without having to waste my time listening to sound-bites and spin-doctoring or nonsensical “human interest” crap on the news. Also with the blogosphere, there are greater opportunities to fact check and the competitive nature (rather than the filtered gatekeepers of the MSM) allows me to quickly learn who is and is not reliable.

It is now the year 2014 and courts have been doctoring their recordings for many years. Both the video and audio recordings of all hearings should be made available upon request to all parties concerned for a fair fee. This is the only way to ensure as much as possible true recordings of what actually occurs in court hearings. It would be logical to deduce that the corrupt would have a problem with this being enforced. To see more on the judicial doctoring of court recordings go to the facebook page 'Australians against Courts Doctoring Court Recordings'.